Legal column: Imaginary patients

Treating regular patients is hard enough, but what about patients who don’t exist? Believe it or not, this is an actual issue in malpractice law. Luckily, the law says doctors need not worry about non-existent patients. Nevertheless, the question continues to be debated in court. It reared its perplexing head recently at the Ontario Court of Appeal, in a tragic case where a woman was given the fertility drug Serophene (clomiphene), which can produce multiple fetuses, which can be born prematurely, which can result in birth defects. Unfortunately, this is exactly what happened. Triplets were conceived, then prematurely born, suffering serious disabilities. The main legal issue was this: Does a physician owe a duty of care to a future child for alleged negligence that occurred pre-conception? A three-judge panel decided the case. Two judges said no. Remarkably, one judge dissented and said maybe. Read: Settlement approved in lawsuit against fertility doc alleged to have used wrong sperm The dissenting judge did not say for sure that a doctor needs to worry about patients who have not yet been conceived. What she did say was that maybe this might be a possibility, so the case never should have been thrown out of court before a trial could even happen. She felt a trial was necessary to properly explore the question, especially if, as the plaintiffs alleged, Serophene was clearly contraindicated in this case. Contraindication could be a legal gamechanger. But she was outvoted, so the question remains to be explored in some future case, at some future time. The majority ruled that a doctor does not owe a duty of care to future children. On the contrary, a doctor only owes a duty of care to the mother. She must be given sufficient information to make an informed decision whether to take a drug. So long as this is done, the decision whether to take the drug is entirely hers. If she does take it, the future children have no complaint against her, and no complaint against the doctor. After all, said the majority, doctors would be placed in an “unworkable” conflict of interest if they owed a duty of care to their patient and also to that patient’s future kids. It would have a “chilling effect,” and it would “interfere with the doctor’s existing legal obligation to the patient, which includes a woman’s right to abort a fetus. Imposing a duty of care on a doctor to a future child would interfere with the exercise of that right. Read: Three month suspension for a gesture with sexual connotations The dissenting judge would not interfere with that right either. “To be clear,” she wrote, “I agree that the law must protect a woman’s absolute right to make informed choices about her own body.” Having said that, the judge went on to argue that this sacrosanct right to make choices might actually support her view of the case. She pointed out that the complainants alleged the fertility drug was entirely contraindicated, it never should have been prescribed to the mother, and indeed it was entirely unreasonable to do so under the circumstances. Specifically, they alleged that she was not advised of the significant risk of conceiving multiple fetuses, the associated risks (including premature birth of the babies), and the resulting potential for significant neurological and developmental injuries. Also, they alleged the doctor failed to take into account the mother’s young age (she was only 25) and the very short time that she and her husband had been trying to conceive (it had been only a few weeks.) "If the evidence at trial bears this out,” the dissenting judge wrote, “then there was no choice for the mother to make. The ‘choice’ given by the doctor was no choice at all, since the fertility drug should never have been prescribed.” This would mean, she went on to say, that the concept of choice would be no longer relevant to imposing on doctors a duty of care to both the mother and future children. Again, she was not saying doctors would definitely owe such a duty, she was merely saying that a trial was necessary to properly address the question. She also pointed out that other countries have recognized a duty of care owed by a physician to a future child. In a 1991 Australian case, doctors failed to diagnose a patient’s syphilis, which caused physical and developmental disabilities in the child she ended up having later on. This Australian case failed to sway the majority judges. Read: Six month suspension for surgeon for insulting remarks toward staff As for the problem of the “unworkable” conflict of interest that would ensue if doctors owed a duty of care to their patient and future children, she said, “If a trial were held and if it turns out to be true that no physician would have ever prescribed Serophene in the circumstances of this case, then the concerns over conflicting duties would fall away, because the future mother and future children’s interests would align.” Only one problem: The future mother exists. Future children do not. And owing a duty of care to someone who doesn’t exist is just too intractable. No doubt it would have a “chilling” effect on doctors, and not in a good way. Bill Rogers is a Toronto lawyer and writer covering medical and pharmaceutical issues. Readers with legal news can contact him at bill@ rogersfamilylaw.com.

Legal column: Imaginary patients

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